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law of tort - Coggle Diagram
law of tort
BURDEN OF PROOF
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CRIMINAL - BoP on prosecution - much HIGHER standard of proof where the prosecution must show that their case is valid “beyond reasonable doubt”
CIVIL - the standard of proof is “ON THE BALANCE OF PROBABILITIES”, which is a MUCH LESS onerous test FOR THE CLAIMANT
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JUSTICE AND TORT
One approach to justice is the EQUAL AND CONSISTENT application of rules such as whether a duty of care exists
Justice can be seen by the then ground-breaking decision of Lord Atkin in Donoghue v Stevenson (1932)
According to Lord Wright, justice is “the guiding principle of a judge in deciding cases is to do justice; that is justice according to the law, but still justice
However, there may be a situation, such as trying to sue the police, when justice is not seen to be done because public policy reasons may mean that they do not owe a duty of care - Wilsher v Essex Area Health Authority (1988), justice was not seen to be done when the victim was injured in hospital but was unable to prove that the doctor was at fault
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Mallett v McMonagle
the law states that “anything that is MORE PROBABLE THAN NOT [the law] treats as CERTAIN" (0-49% = 0%) (50-100%=100%)
if you are found to be MORE LIKELY THAN NOT to have caused harm to someone else, then the law of tort IGNORES the possibility that you MIGHT NOT HAVE CAUSED them harm
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STRICT LIABILITY
examples: nuisance, Rylands v Fletcher and vicarious liability
These torts are GOOD FOR CLAIMANT, because a claimant DOES NOT NEED TO SHOW that the DEFENDANT was ‘AT FAULT’ - i.e. they DO NOT HAVE TO SHOW that the DEFENDANT ACTED WRONGFULLY - instead, the claimant just NEEDS TO SHOW that the DEFENDANT AS LEGALLY RESPONSIBLE for the thing which CAUSED THE HARM
Under the Animals Act 1971 - a defendant who keeps a dangerous animal is LEGALLY RESPONSIBLE for any DAMAGE that it CAUSES. Even if the defendant DID NOT KNOW that the animal was CAUSING - or was LIKELY TO CAUSE - such damage
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MORALITY AND TORT
MORALS are to do with THOUGHTS AND BELIEFS, and the moral values of a society lay down a FRAMEWORK as to HOW PEOPLE SHOULD BEHAVE within that society - morality can DIFFER from person to person
It is MORALLY RIGHT that DRIVERS in charge of a potentially DANGEROUS MACHINE should OWE A DUTY OF CARE to other road users, and they SHOULD PAY COMPENSATION to the other if they BREAK THAT DUTY and injure another or cause damage to other property
The concept of damages is central to the law of tort - the purpose of damages is to PUT THE CLAIMANT BACK INTO THE POSITION THAT HE/SHE WOULD HAVE BEEN BEFORE the tort was committed
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In RARE cases, the claimant may seek a DIFFERENT REMEDY - these remedies include INJUNCTIONS (an ORDER that the DEFENDANT STOPS doing something) or SPECIFIC PERFORMANCE (a court order saying that the DEFENDNAT MUST DO something)